McKechnie v. Sterling

By the Court, E. Darwin Smith, J. By the contract between the parties of the date of J une 3d, 1862, the plaintiffs agreed to sell, and the defendant to purchase all the right of the plaintiffs in the premises therein described, for the consideration of $200. The plaintiffs had a leasehold interest in the premises, subject to a rent of $70 per annum, which term would expire on the first of March thereafter, with the privilege of a renewal for two years longer, from the said first of March. The building on the premises was erected by the plaintiffs, but it does not appear that they had any right to remove it from the demised premises at the end of the term. It was, therefore, a fixture attached to the freehold, and was part of the realty. The agreement between the parties was, therefore, a contract for the sale of an interest in land. The defendant was authorized to take immediate possession. The payment of the consideration was to be made upon demand, as no time was fixed for its payment. Strictly, perhaps, the plaintiffs could not have required payment till they tendered an assignment of the lease, and gave the defendant possession. The contract, however, was absolute, and vested in the defendant the equitable interest in the land the moment it was executed and delivered. (Moore v. Burrows, and Adams v. Green, 34 Barb. 173 and 183.) This action is for the $200 consideration money specified in the contract, and the plaintiffs showed at the trial that they had tendered an assignment of their lease of the premises and also a quit claim deed thereof in execution of the contract, and demanded payment. The defendant showed nothing in the shape of a defense to the action, at the trial. It is true, he did not get possession, and could not for several days after the execution of the contract; but that did not avoid the contract. He purchased the plaintiffs’ interest in the land as it was at the time, and was content to take the contract with a provision authorizing him to take immediate possession. ' This was not a covenant for. the immediate possession, or a condition therefor, the breach of which avoided the contract. [335] The destruction of the building by fire, after the making of this contract, was no defense in the action. In Sugden on Vendors, ft. 254, it is said, “ that a vendee being the equitable owner of the estate from the time of the contract of sale, must pay the consideration for it, although the estate itself be destroyed between the agreement and the conveyance; and on the other hand, he will be entitled to any benefit which may accrue to the estate in . the interim,” and cites 2 Powell on Contracts, 61; Paine v. Meller, (6 Vesey Jr. 349 ;) Poole v. Sheyold, (2 Bro. C. C. 118 ;) Real v. Hussey, (2 Ball & Beatty, 280;) and Harford v. Pumes, (1 Madd. 532.) Vide also Fry on Specific Performance, § 600, and Story’s Eg. §§ 101, 102. In Paine v. Miller, supra, Lord Eldon said of the vendee in such cases : “ If the party, by the contract, has become in equity the owner of the premises, they are his to all intents and purposes. They are vendbile as his, chargeable as his, capable of being encumbered as his ; they may be devised as his ; they may be assets, and they would descend to his heirs.” Another consideration in support of this view, is that the vendee has an insurable interest in the premises after the contract of sale, and might have protected himself by an insurance; and if the vendor retaining the title for his security has also a policy of insurance on the buildings on the premises, such policy would be merely a collateral security, and in case the building was destroyed by fire, the insurance company paying the loss would be entitled to an assignment of the debt, and to be subrogated to his rights. (Angell on Fire Insurance, § 66. McGivney v. Phenix Fire Insurance Company, 1 Wend. 85. Etna Fire Insurance Company v. Tyler, 16 id. 385.) If this contract had been a lease of this building, then this consequence would not follow. The landlord would be bound to give possession before the estate would vest, or term commence, and until that was done the lease would be a mere executory contract, as was held by this court in Wood v. Hubbell, (5 Barb. 604;) or if it had been a sale of personal [336] property, the plaintiff would be hound to make delivery before the title would vest, and in the meantime the property would be at his .risk. (2 Kent’s Gom. 2d ed. 367. 9 Dowl. & Ry. 276. 7 East, 558, and 11 id. 210. Thompson v. Gould, 20 Pick. 139.) I do not see why the motion for a mew trial must not be denied, and judgment be ordered upon the verdict. [Monroe General Term, March 4, 1867. New trial denied. Welles, E. D. Smith and Johnson, Justices.]